Assessing data privacy compliance in M&A (Mergers and Acquisitions) transactions is a critical step to ensure that both the acquirer and target company are aware of potential data privacy risks and liabilities. Data privacy compliance has become increasingly important due to the growing number of data protection regulations worldwide, such as the European Union’s General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA).
Here are some key steps and considerations for assessing data privacy compliance in M&A transactions:
Conduct a Data Inventory: Both parties should conduct a comprehensive data inventory of the target company’s data assets. This includes identifying the types of personal data collected, processed, stored, and transferred, as well as understanding the purposes for which the data is used.
Regulatory Compliance: Determine which data protection regulations apply to the target company based on its geographical presence and the nature of its data processing activities. Common regulations to consider include GDPR, CCPA, Health Insurance Portability and Accountability Act (HIPAA), etc.
Privacy Policies and Notices: Review the target company’s privacy policies and notices to ensure they are accurate, up-to-date, and transparent in explaining data processing practices to individuals.
Consent Mechanisms: Assess whether the target company has obtained valid consent from individuals for the processing of their personal data, where required by law.
Data Transfers: Determine if the target company transfers data internationally and whether appropriate safeguards are in place for such transfers, such as Standard Contractual Clauses (SCCs) or Binding Corporate Rules (BCRs).
Data Security Measures: Evaluate the target company’s data security measures and assess if they are adequate to protect against data breaches and unauthorized access.
Data Breach Incidents: Review any past data breach incidents and assess how they were handled, including notifications to affected individuals and authorities.
Vendor and Third-Party Assessments: Identify any third-party vendors with whom the target company shares data and review their data privacy practices and contracts.
Data Subject Rights: Ensure that the target company has procedures in place to address data subject rights, such as access, rectification, erasure, and data portability.
Data Retention and Disposal: Verify that the target company has established proper data retention and disposal policies to avoid unnecessary data hoarding.
Compliance with Internal Policies and Procedures: Assess whether the target company’s employees are trained on data privacy, and whether internal policies and procedures align with data protection regulations.
Liabilities and Indemnifications: Determine the potential liabilities related to data privacy non-compliance and negotiate appropriate indemnifications in the purchase agreement.
Legal and Regulatory Investigations: Check if the target company is currently involved in any data privacy-related legal or regulatory investigations.
Future Compliance Measures: Outline post-acquisition integration plans to address any identified data privacy gaps and bring the target company into compliance with relevant regulations.
It’s crucial to involve legal and data privacy experts in the due diligence process to ensure a thorough assessment of data privacy compliance during M&A transactions. Addressing data privacy issues proactively can mitigate risks, enhance the value of the transaction, and maintain trust with customers and stakeholders.